Pro­posed Crim­i­nal Code changes worry lawyers

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CAL­GARY • Le­gal ex­perts say pro­posed changes to the Crim­i­nal Code after a high-pro­file ac­quit­tal in the fa­tal shoot­ing of an In­dige­nous man are short-sighted.Key changes in a fed­eral bill, which has passed third read­ing, in­volve peremp­tory chal­lenges dur­ing jury se­lec­tion and use of pre­lim­i­nary in­quiries. Peremp­tory chal­lenges al­low lawyers to re­move a po­ten­tial ju­ror with­out giv­ing rea­sons.Cal­gary lawyer Bal­four Der, who has worked as both a pros­e­cu­tor and a de­fence lawyer for 38 years, said the pro­posed changes are a knee-jerk re­ac­tion in part to the ac­quit­tal by an all-white jury of a Saskatchewan farmer in the shoot­ing death of a 22-year-old Cree man.“It’s a re­ac­tion of the gov­ern­ment to sat­isfy an in­ter­est group which may have been com­plain­ing after this,” he said in a re­cent in­ter­view.“I can’t imag­ine any­thing less help­ful in jury se­lec­tion to both sides than to have no peremp­tory chal­lenges. You’re not just look­ing for a jury of your peers but you’re look­ing for an im­par­tial jury.”Vis­i­bly In­dige­nous po­ten­tial ju­rors were re­leased dur­ing jury se­lec­tion for Ger­ald Stan­ley’s trial. The farmer said he ac­ci­den­tally shot Colten Boushie in the back of the head when a group of In­dige­nous youths drove on to Stan­ley’s farm near Big­gar, Sask., in Au­gust 2016. He was found not guilty of sec­ond-de­gree mur­der in Feb­ru­ary.The ver­dict trig­gered a back­lash across the coun­try. Boushie’s fam­ily, aca­demics and politi­cians said the ac­quit­tal un­der­scored the sys­temic racism in the jus­tice sys­tem and called for changes, specif­i­cally to jury se­lec­tion.Fed­eral Jus­tice Min­is­ter Jody Wil­son-ray­bould agreed. She said re­mov­ing the chal­lenges would make sure ju­ries were more rep­re­sen­ta­tive of the Cana­dian pop­u­la­tion.“Our crim­i­nal jus­tice sys­tem must be fair, equitable and just for all Cana­di­ans,” Wil­son-ray­bould said at the time.Lawyers would still have the right to chal­lenge a po­ten­tial ju­ror for cause, but the leg­is­la­tion would em­power the judge to de­cide.Der, au­thor of a text­book on jury law, said ban­ning peremp­tory chal­lenges would mean you could “get stuck with the first 12 peo­ple who say they’re ready, will­ing and able to be ju­rors.“I don’t know how that’s go­ing to get more First Na­tions peo­ple on ju­ries.”Lisa Sil­ver, a Univer­sity of Cal­gary law pro­fes­sor, who ap­peared be­fore the par­lia­men­tary stand­ing com­mit­tee that ex­am­ined the bill, said the Stan­ley ver­dict was the re­sult of sev­eral fac­tors.“To take away peremp­tory chal­lenges is not the full an­swer,” Sil­ver said. “Some de­fence lawyers sug­gest that they’ve used peremp­tory chal­lenges when they’ve had an In­dige­nous client and it’s been to their ben­e­fit.”Sil­ver, Der and Cal­gary de­fence lawyer Alain Hep­ner said a bet­ter so­lu­tion would be to change the way a prospec­tive jury pool is se­lected. That list cur­rently comes from voter reg­is­tra­tions, driv­ers li­cences or iden­ti­fi­ca­tion re­newals.“Abo­rig­i­nal names are easy to fig­ure out,” Hep­ner said. “Those names are ob­vi­ous, so let’s get the ju­rors that are their peers.”The pro­posed leg­is­la­tion would also re­strict pre­lim­i­nary in­quiries only to of­fences that carry life im­pris­on­ment. The in­quiries are hear­ings to de­ter­mine whether there is enough ev­i­dence to go to trial.That change stems from a 2016 Supreme Court de­ci­sion that lim­its how long it can take for a crim­i­nal case to go to trial be­fore it is deemed un­rea­son­ably de­layed.

Colten Boushie was fa­tally shot in Saskatchewan in 2016. Jury se­lec­tion in the case came un­der fire.

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